Our house is on fire. Join the resistance: Do no harm/take no shit. My idiosyncratic and confluent bricolage of progressive politics, the collaborative commons, next generation cognitive neuroscience, American pragmatism, de/reconstruction, dynamic systems, embodied realism, postmetaphysics, psychodynamics, aesthetics. It ain't much but it's not nothing.

Monday, June 30, 2014

Thom Hartmann on Supreme Court authority

On his radio show today he discussed the Court's ruling in the Hobby Lobby case. The Court said that closely-held private companies like Hobby Lobby can refuse to provide certain forms of birth control on its health insurance plan if it is against their religious beliefs. While there are a number of issues on this case, the one Hartmann focused upon is the Supreme Court's Constitutional authority based on Article 3, Section 2, which reads in part:

"In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
shall make."

Hartmann interprets this to mean that the Supreme Court in this sort of case only has appellate jurisdiction, meaning it cannot create law; the latter is solely the jurisdiction of Congress. The Supreme Court in this and other cases is making law by overstepping its legitimate authority to decide the law in a particular case by deciding about law that applies in a much more general sense. Regressives have called this 'judicial activism' in the past, e.g. in the Roe v. Wade Supreme Court decision. Hartmann agrees that the Court went outside its authority in that decision as well, even though he agreed with the outcome. He said the Court should have decided for that particular case and it was Congress's job to change the laws on abortion more generally.

He also goes into the history of when and how the Supreme Court claimed this authority for its own, how it is nowhere found in the Constitution, and that Congress needs to exercise its authority to reign in the Court "under such Regulations" as it shall make. That obviously isn't going to happen with the current Congress. And let's see if the regressives start crying 'judicial activism' on this ruling or if, as usual, they'll forget about their own arguments since the ruling went in their favor. Any guesses on that one?